The Theory and Practice of Legislation Realist Conceptions of Legislation Volume 1, Number 1, June 2013 Eds. P. Brunet, E. Millard, P. Mindus PRE-PRINT VERSION Realist Conceptions of Legislation Eds. Pierre Brunet, Eric Millard, Patricia Mindus Table of content Pierre Brunet, Introduction A – Scandinavian Realism Patricia Mindus, Axel Hägerström on Law-making TT. Arvind, Vilhelm Lundstedt and the Social Function of Legislation Torben Spaak, Karl Olivecrona on Legislation Eric Millard, Alf Ross and Realist Conceptions of Legislation B – American Realism Danni Hart, Cross Purposes and Unintended Consequences: Karl Llewellyn, Article 2 and the Limits of Social Transformation Michael S. Green, Felix Cohen on Legislation Frank B. Cross, The New Legal Realism and Statutory Interpretation C – Questioning Realism Today Alvaro Nunez Vaquero, Towards Realist Dogmatics Pierluigi Chiassoni, Some Realism about Legislation Hanoch Dagan, Lawmaking for Legal Realists 1 The Theory and Practice of Legislation Realist Conceptions of Legislation Volume 1, Number 1, June 2013 Eds. P. Brunet, E. Millard, P. Mindus PRE-PRINT VERSION INTRODUCTION Pierre Brunet* What has legal realism to say about legislation? Does it really have anything to say about it? Indeed, the topic offers a real paradox and a great challenge. At a first glance, talk about appropriate legislation or decision-making in the legal realm does not seem to belong to the realist tradition. Its very approach to the topic builds on the inherently ambiguous notion of legislation. First of all because “legislation” – as most words ending in “-tion” – indicates both a process and the result of the process: It stands both for the process of passing a statute and the very enacted statute. Moreover, as a process, legislation may refer to legislative authority as well as the activity of judges. Add to this the fact that “realism” is not an univocal label even within legal theory and despite the fact that we all (think we) know who the realists were, it remains a controversial issue to establish how to best understand realism and which theories of law fit the label. Numerous scholarly works, published 1 over the last twenty years, have contributed to putting an end to the “frankification of realism” and legal realism is today no longer reducible to a debate on the idiosyncrasies of judges. Yet, in avoiding any such reductionism, the papers collected in this special issue should not appear to go in too disparate directions. In fact, the contributions have a common starting point: like Hanoch Dagan argues, realism is “insisting on a view of law as a set of ongoing institutions distinguished by the difficult accommodation of three constitutive yet irresolvable tensions: between power and reason, science and craft, and tradition and progress.” Embracing this general conception, the ten papers in this special issue are grouped in the following way. Section A deals with conceptions of legislation in the tradition of Scandinavian realism, and consists of four papers, each dedicated to an important Scandinavian realist: Patricia Mindus presents the view of Axel Hägerström, TT. Arvind that of Vilhelm Lundstedt, Torben Spaak that of Karl Olivecrona and Eric Millard that of Alf Ross. Section B deals with conceptions of legislation in the tradition of American realism: Danni Hart discusses the contribution of Karl Llewellyn, Michael Green that of Felix Cohen and Frank B. Cross that of the movement known as new realism. Section C, entitled questioning realism today, groups three papers with more general theoretical claims about realist conceptions of legislation: Núñez Vaquero deals with the normative side of the issue, Pierluigi Chiassoni focuses on the premises of a theory of legislation in the realist tradition and Dagan develops his views on the idea of law-making that fits the realists. Notwithstanding the many differences between American and Scandinavian legal realism, which legitimate this grouping, there are also a number of reasons why we have chosen to explore the topic from both perspectives: M.S. Green emphasizes that American legal realists did need a prediction theory to criticize the idea according to which “rights” as well as other legal relations “exist” or have been “enforced.” From their point of view, legal relations do not exist as such: We are interpreting factual situations as if they were the causal effect of legal relations. Power thus tends to disappear in the mist of objectively valid law. This is so for the Scandinavian realists as well. It might be worth noticing that, according to Torben Spaak, Olivecrona also criticized the idea of “objective legal relations” whose “account of legislation follows a reliably realist pattern in that it is concerned not with the capacity of legislative products to establish legal relations, but with their capacity to cause people to behave in one way or another” (Spaak). It is worthwhile emphasizing that interpretation, decision-making and morally relevant choices are pervasive, for judges adjudicating as in the process leading to the adoption of a statute. As applied by Cohen, prediction theory sheds light on the fact that adjudication is ultimately a moral decision that cannot be determined only by existing law. Green focuses on the tension between law and morals that is at the core of Cohen’s version of the prediction theory. But he also insists on Cohen’s originality since he was the one who “criticized other realists for exaggerating the extent to which the law is indeterminate” and writes that, “the prediction theory forces judges to face the fact that adjudication is always a moral decision that cannot be answered by determining existing law”. Green’s analysis echoes a relevant point first made by Rumble who wrote that “the thirst for justice which burned at the throat of every legal realist also afflicted him; but in him it was translated into a systematic analysis of the * Professor of Public Law, Director of the UMR CNRS 7074, Centre de Théorie et Analyse du Droit, [email protected] 1 See e.g. W.W. Fisher III, M. Horwitz, T.A. Reed, American Legal Realism (Oxford UP, NY, 1993), 167; B. Leiter, ‘American Legal Realism’, in M.P. Golding and W.A. Edmundson (eds.), The Blackwell Guide to the Philosophy of Law and Legal Theory (Blackwell Publ., Oxford, 2005) 50-66. 2 The Theory and Practice of Legislation Realist Conceptions of Legislation Volume 1, Number 1, June 2013 Eds. P. Brunet, E. Millard, P. Mindus PRE-PRINT VERSION 2 ends of law” so that Cohen in particular appears to be “the one genuine exception to the general 3 tendency of most legal realists” . Like all realists, he was very much concerned with justice but unlike most of realists, he was much more interested in the ends of law rather than in its means. This is why he was reluctant to focus on legal indeterminacy. T.T. Arvind’s paper shows that the same could be said of Lundstedt whose theory is in contrast with many contemporary sceptical or critical theories. Lundstedt starts out with rejecting the traditional distinction between “interpretation” and “legislation” and recognizes that interpretation by judges in “hard” cases is actually better grasped as a form of legislation. Yet, Arvind explains, “unlike modern- day sceptical theorists, Lundstedt did not thereby imply that the adjudicative process is characterised by complete subjectivity, or an absence of groundedness.” This brings Arvind to conclude that “by linking parliamentary and judicial legislation, Lundstedt sought to make the point that both judicial and parliamentary legislation are grounded in the same thing – namely, conceptions as to its social usefulness and social functions – because legislation in its very nature is concerned with being, in some way, useful to society or with fulfilling definite social purposes and functions.” From this point of view, the analysis of New Realism that Cross puts forward is very stimulating as he uses empirical research on judicial decision-making and its implications for legal realism concerning statutory interpretation. Much like the views of classical realists, “the research shows that attitudinalism and a degree of strategic behaviour characterizes judicial decisions.” But unlike the classical views, it also shows that “these extra-legal effects are not all powerful. Instead, it appears that traditional legal concerns are also quite important to judges.” Of course, such “formalistic” decision- making does not mean that judges are “bound” by the law as much as it shows the preference for a specific rhetoric surrounding decision-making. We should always recall that, as Rumble emphasized, “the objective of the legal realists was not simply to describe and explain judicial behaviour as accurately as possible; rather, it was also to prescribe reforms for this behaviour. In other words, there is a positive, even idealistic, side to their teachings. Unfortunately, it is a side which has far too often been obscured by the militancy of their negations of traditional theories. Nonetheless, they did not wish solely to destroy; they also wished to 4 build.” This can be considered a point commonly made by the contributions to this special issue. Especially, this is the case of Dani Hart’s contribution which attempts to explain why Llewellyn’s efforts to reform contract law have had such serious long-term but unintended consequences for the modern contract law system. Hart’s essay makes this point in an unorthodox way by importing insights from two seemingly unrelated fields – civil rights law and social philosophy. Núñez Vaquero’s paper does also make this point: It attempts to provide a conceptual reconstruction of normative intuitions in the realist tradition, construed broadly as covering the most notable realists of course, but also their precursors and heirs, on the backdrop of ethical consequentialism. In shedding light on the complex issue of realist views on legislation and decision-making more generally, this special issue reserves attention also to Alf Ross’ theory.